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Council OKs ordinance targeting 'aggressive' panhandling

By Ed Hannan, Sun Correspondent

Updated:
02/05/2014 06:35:42 AM EST

LOWELL -- Responding to scrutiny from the American Civil Liberties Union, the City Council Tuesday night revised a downtown panhandling ordinance so that it targets "aggressive" solicitations exclusively.

The amended ordinance, approved by a unanimous vote, makes clear the city is now focused primarily on targeting aggressive panhandling in the downtown historic district, while not trying to eliminate all solicitations. The original law was passed in November.

"The ordinance is not intended to limit any persons from exercising their constitutional right to solicit funds, picket, protest or engage in any other constitutionally protected activities," it states.

Councilors Rita Mercier and Corey Belanger were adamant in support of the tighter focus, saying it will protect downtown businesses.

"When we look at the big picture, we find there are people who try to get money by standing in front of businesses," Mercier said. "That deters people from going into those businesses."

Panhandling in an "aggressive manner" is defined in the amended ordinance in a variety of ways, including:

* Continuing to engage in panhandling toward a person after the person has given a negative response to such soliciting.

* Intentionally touching or causing physical contact with another person or their property without that person's consent.

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* Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means.

* Panhandling in a group of two or more persons in an intimidating fashion.

* Panhandling within 20 feet of the entrance to, or parking area, of any bank, ATM, check-cashing business, garage, mass-transportation facility or stop, public restroom, pay phone, theater or any outdoor seating of a business.

Violators are subject to arrest. Each offense is punishable by a $50 fine. The Police Department can also issue noncriminal dispositions with a $50 penalty per violation. Those penalties would remain in effect.

The revised ordinance also eliminates the exemption to the law for nonprofits, civic or benevolent organizations, as described in Section 501(c) of the Internal Revenue Code.

The City Council voted 6-2 in November to approve the original ordinance, with then-Councilors Vesna Nuon and Joseph Mendonca opposed, and then-Mayor Patrick Murphy absent.

During the first 11 months of 2013, Lowell police received 237 calls related to panhandling, and councilors say panhandling is a a growing problem in the city.

"How aggressive is it to hold a sign 20 feet from a bus stop?" Bettencourt asked, adding that many of those calls would have been covered under disorderly-conduct ordinances. "How are we not able to enforce existing disorderly-conduct and battery laws?"

City Solicitor Christine O'Connor said, "With respect to sign holding, it's sign holding plus aggressive behavior. With respect to other nonprofits that are not exempt from downtown area, it's just a limited area in which they are not exempt. Nothing would prevent the Salvation Army from contacting Market Basket and setting up a charitable event downtown."

Former City Councilor Marty Lorrey, who proposed the initial panhandling ordinance last fall, spoke in opposition to the changes.

"This ordinance has gone way off from what I proposed," he said. "This ordinance only covers downtown. Now we're deciding what is aggressive behavior. To me, that's up to the individual being approached. We shouldn't define it. Every time we add something, we delete the rights of others. Businesses can put up signs that say, 'No soliciting, no loitering,' but on public streets, there's nothing we can do."

A suggested overhaul of the ordinance came after the ACLU of Massachusetts voiced concerns about the original law. A spokesman for the ACLU told The Sun last month that courts throughout the country have ruled peaceful panhandling is protected by the First Amendment.

In other action Tuesday night, the council voted 5-4 to appoint Salmira Mitchell to the Pollard Memorial Library Board of Trustees.

Two weeks ago, the council tabled City Manager Bernie Lynch's request to appoint Mitchell to the board. City Councilor Dan Rourke made the motion on Tuesday to take it off the table.

The council voted by the same 5-4 margin to take Mitchell's appointment off the table, with Councilors Belanger, Mercier, Ed Kennedy and Mayor Rodney Elliott opposed. Rourke switched his vote from tabling the appointment to taking it off the table.

At its Jan. 21 meeting, the council voted to approve a Planning Board appointment and a Zoning Board of Appeals alternate appointment. Rourke then tried to take the appointment off the table, but was told he had to wait until a future meeting.

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